Political Strategy for a Permanent Democratic Majority

Republicans Try to Hide the Ball on SCOTUS and Abortion Rights

After hearing and reading many Republican efforts to lower the stakes involved in the choice of a replacement for Anthony Kennedy on the Supreme Court, I offered this cautionary analysis at New York:

As Washington, D.C., girds its loins for the biggest Supreme Court confirmation fight since 1991 (when the Clarence Thomas/Anita Hill saga riveted the country), conservatives are already working overtime to lull progressives to sleep by claiming fears a Kennedy replacement would help form a five-justice bloc ready to unravel abortion rights are exaggerated. The Wall Street Journal editorial board is offering the template for other “nothing to see here” takes:

“[T]he predictions of doom for abortion … rights began within minutes of Anthony Kennedy’s resignation last week. These predictions are almost certainly wrong.

“[T]his is what Democrats and their media allies always say. They said it in 1987 when Justice Kennedy was nominated. They said it in 1990 about David Souter, again about Clarence Thomas in 1991, John Roberts and Samuel Alito in 2005, and Neil Gorsuch in 2017. They even claimed the Chief Justice might overturn Roe because his wife is a Roman Catholic. Mrs. Roberts is still waiting to write her first opinion.”

Actually, “they” didn’t say that about Roberts or Alito or Gorsuch. Yes, the likelihood that these nominees would someday take advantage of the opportunity to overturn or greatly modify Roe v. Wade were factors in the debates over their confirmation, but nobody argued abortion rights were in imminent danger from placing any of them individually on the Court. During the period when Kennedy and Souter and Thomas joined the Court, there was every reason to fear that abortion rights were fragile, until Souter and Kennedy (along with Reagan nominee Sandra Day O’Connor) formed a new if narrow majority in the 1992 decision in Casey v. Planned Parenthood.

It is no exaggeration to say that the current era of conservative judicial politics really began with backlash against the “perfidy” of Republican-appointed justices like Souter and Kennedy and O’Connor in reinforcing abortion rights. That is why Donald Trump won so much conservative street cred by creating an official, exclusive list of SCOTUS prospects that would be vetted by the fiercely anti-Roe legal activists of the Federalist Society and the Heritage Foundation. Here’s how legal journalist Jeffrey Toobin described the views of chief Trump judge-vetter Leonard Leo, who is on leave from the Federalist Society:

“According to Leo, the vast majority of abortions are a consequence of voluntary, consensual sexual encounters, an opinion that influences his view of the procedure.’We can have a debate about abortion,” he told me. “It’s a very simple one for me. It’s an act of force. It’s a threat to human life. It’s just that simple …’

“As Edward Whelan, a prominent conservative legal activist and blogger, wrote recently, ‘No one has been more dedicated to the enterprise of building a Supreme Court that will overturn Roe v. Wade than the Federalist Society’s Leonard Leo.'”

The odds of a secret supporter of abortion rights sneaking through a process that leads from Leo to Trump (who promised explicitly to produce a Court that would overturn Roe) are more than zero, but they are extremely low.

Like some other naysayers about the threat to Roe, the Journal editorial places a lot of stock in conservative respect for judicial precedents:

“The liberal line is always that Roe hangs by a judicial thread, and one more conservative Justice will doom it. Yet Roe still stands after nearly five decades. Our guess is that this will be true even if President Trump nominates another Justice Gorsuch. The reason is the power of stare decisis (or precedent), and how conservatives view the role of the Court in supporting the credibility of the law.”

Roe’s survival has in fact become steadily less, not more, certain, for the very simple reason that over the years one of America’s two national political parties has been completely taken over by politicians who want to see it reversed. The once-robust tribe of pro-choice Republicans is about to become extinct in the U.S. House, and is limited to two senators. The official position of the GOP as expressed in its national party platform goes far, far beyond reversing Roe and embraces enshrining fetal personhood in the U.S. Constitution. Now we have a Republican president whose relationship with conservative activists and particularly to white conservative Evangelicals depends heavily on an agreement to conduct a counter-revolution on the Court, a Republican Senate, and a judicial selection system created to root out constitutional heresy. Yet the Journal would have us believe it just won’t happen because it hasn’t happened yet.

Yes, it’s true the post-Kennedy Court with a second Trump justice might not overturn Roe and Casey immediately. They certainly don’t have to go the whole hog in order to significantly restrict abortion rights. The truth is that the Court experienced another key inflection point in 2016 in the Whole Women’s Health v. Hellerstedt case in which Kennedy was one of five justices who headed off a massive wave of TRAP (Targeted Regulation of Abortion Providers) laws being enacted by Republican-controlled state legislatures. A new justice replacing Kennedy could instantly form a majority ready to give a green light to state laws that could make the theoretical right to an abortion a dead letter in many red states with abortion clinics being run out of business. To look at it another way, runaway TRAP laws (justified by spurious health requirements) could create a practical situation much like the pre-Roe environment, when women needed the means to travel to more liberal states to secure an abortion.

Still, the possibility of a full reversal of Roe — at once or in stages — should not be underestimated. Yes, stare decisis (the judicial principle of respect for Supreme Court precedents) will complicate the process, but it’s hardly a straitjacket once a majority decides to overturn a precedent believed to be wrongly decided. As even the Journal notes, the Court just got through overturning a 40-year precedent in the Janus v. AFSCME labor case. Conservative justices, moreover, have in recent years arguably transformed constitutional law on a host of subjects ranging from campaign finance to voting rights to regulation of businesses. Even the Roberts Court’s most famous decision that disappointed conservatives, the NFIB v. Sebelius case on Obamacare, reversed decades of Commerce Clause precedents.

The reality is that conservatives have grown used to hiding the ball on Roe v. Wade and abortion policy — a habit that parallels the old (and still enduring) claim of Confederate apologists that the Lost Cause was about states’ rights rather than slavery. Democrats shouldn’t buy one any more than the other.

But let’s don’t ignore the fact that another recently conservative demographic group became bluer than in the last two elections: seniors. According to exit polls, over-65 voters went Republican by a spare two points (50/48). Republicans carried them 58/42 in 2010; 56/44 in 2012; 57/41 in 2014 and 52/45 in 2016. Even in 2008, the year of the Obama landslide, Republicans won seniors 53/45. This improvement by Democrats was particularly significant in that seniors are a steadily increasing percentage of the electorate; growing from 20 percent in 2010 to 22 percent in 2014 and 26 percent this year. It also suggests that some polarization scenarios that pit old conservatives against young progressives are a bit over-sold.

Even in what we think of as the heartland of Trumpism, among old white people, Democrats made similar progress. They won 36 percent of white seniors in 2014, 39 percent in 2016 and then 43 percent in 2018. A rising percentage of a rising portion of the electorate is a very good sign.

There are, of course, possible avenues for a renewed Republican trend among seniors, particularly if they stay away from proposing major benefit reductions for Medicare and Social Security (as they largely have since Trump became their leader). All other things being equal, senior, and particularly white seniors, are relatively conservative on cultural issues, including immigration. And even on “their” entitlement programs, it’s possible that Democrats will offer too much of a good thing, as Frederick Lynch recently warned:

“Older Americans probably suspect (as was the case with the Affordable Care Act) that Medicare for All might produce ‘socialized medicine’ that could shift Medicare resources from seniors to younger populations. In addition, these fears and resentments would be compounded if the resources were stretched to include millions of unauthorized immigrants who would become eligible for universal health care through citizenship.

“Mr. Trump has already articulated such fears and previewed a likely Republican strategy to attack Medicare for All as a ‘socialist’ scheme that will bankrupt Medicare: At a September rally in Montana, he said that Democrats want to turn the country into (socialist) Venezuela, destroying Social Security, and that they say ‘Medicare for All’ until they run out of money, which will be the third day, and it will be Medicare for nobody.”

Rebutting such myths will be essential for Democrats advocating a universal single-payer program. But most of all, Democrats need to avoid the temptation of mentally writing off old folks–especially old white folks–as they pursue what some have called a “coalition of the ascendant.” In the end, a vote’s a vote, and there are too many seniors voting to make them anything other than a constant target, even if Democrats don’t “win” them.